1Center for American Progress | Clearly Constitutional
Clearly Constitutional
A Primer on the Constitutionality of the Affordable Care Act
Ian Millhiser January 18, 2011
Introduction
Nearly hree dozen judges have now considered challenges o he landmark Aordable Care Ac and he overwhelming majoriy o hese cases have beendismissed. Neverheless, a single oulier judge in Virginia has embraced he meri-less argumens agains he new healh care law and anoher judge in Florida alsoappears poised o break wih he overwhelming consensus o his colleagues. Wih only a ew excepions, hese lawsuis principally challenge he AordableCare Ac’s minimum coverage provision—he provision requiring mos Americanso eiher carry healh insurance or pay slighly more income axes—alsely arguingha Congress lacks he consiuional auhoriy o enac such a provision. I is rueha Congress’s auhoriy is limied o an iemized lis o powers conained in heex o he Consiuion isel, bu while Congress’s powers are no unlimied, hey are sill quie sweeping. Tere is no doub ha he Aordable Care Ac s wihinhese enumeraed powers in hree ways, as his issue brie will demonsrae.
Congress has broad power to regulate the national economy
A provision o he Consiuion known as he “commerce clause” gives Congresspower o “regulae commerce … among he several saes.” And here is a longline o Supreme Cour decisions holding ha Congress has broad power o enaclaws ha subsanially aec prices, markeplaces, or oher economic ransacions.Because healh care comprises approximaely 17 percen o he naional economy,i is impossible o argue ha a bill regulaing he naional healh care marke doesno wihin Congress’s power o regulae commerce.
2Center for American Progress | Clearly Constitutional
Neverheless, opponens o he Aordable Care Ac claim ha a person who doesno buy healh insurance is no engaged in any economic “aciviy” and hereorecanno be compelled o perorm an undesired ac. Even i hese opponens werecorrec ha he uninsured are no acive paricipans in he healh care mar-ke—and hey are acive, o course, every ime hey become ill and seek medicalcare—nohing in he Consiuion suppors his novel heory. Indeed, his heory appears o have been invened solely or he purpose o his liigaion. Congresshas enaced counless laws which would be orbidden under his exra-consiu-ional heory:
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Guns
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Presiden George Washingon signed a law ha required much o hecounry o purchase a rearm, ammuniion, and oher equipmen in case hey needed o be called up or miliia service. Many o he members o Congress who voed or his mandae were members o he Philadelphia Convenion ha wroe he Consiuion.
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Civil rights
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Te Civil Righs Ac o 1964 compelled business owners o engagein ransacions hey considered undesirable—hiring and oherwise doing busi-ness wih Arican Americans.
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Insurance mandates
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Te Aordable Care Ac is no even he only ederal law requiring someone o carry insurance. Te Price-Anderson Ac o 1957 requiresnuclear power plans o purchase liabiliy insurance and he Flood DisaserProecion Ac requires many homeowners o carry ood insurance.
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Other mandates
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Oher laws require individuals o perorm jury service, le ax reurns, and regiser or selecive service.
The minimum coverage provision is the keystone that holds theAffordable Care Act together
Te Consiuion also gives Congress he power “[]o make all laws which shall benecessary and proper or carrying ino execuion” is power o regulae inersaecommerce. As Supreme Cour Jusice Anonin Scalia explains, his means ha“where Congress has he auhoriy o enac a regulaion o inersae commerce, ipossesses every power needed o make ha regulaion eecive.”Te ac eliminaes one o he insurance indusry’s mos abusive pracices—deny-
3Center for American Progress | Clearly Constitutional
ing coverage o paiens wih pre-exising condiions. Tis ban canno uncion i paiens are ree o ener and exi he insurance marke a will. I paiens can waiunil hey ge sick o buy insurance, hey will drain all he money ou o an insur-ance plan ha hey have no previously paid ino, leaving nohing lef or he reso he plan’s consumers.Seven saes enaced a pre-exising condiions law wihou also passing an insur-ance coverage requiremen, and all seven saes saw healh insurance premiumsspiral ou o conrol. In some o hese saes, he individual insurance marke col-lapsed. Tere is a way ou o his rap, however. Massachusets enaced a minimumcoverage provision in 2006 o go along wih is pre-exising condiions provisionand he resuls were boh sriking and immediae. Massachusets’ premiums rap-idly dropped by 40 percen.In oher words, because he only way o make he pre-exising condiions law eecive is o also require individuals o carry insurance, ha requiremen easily passes Scalia’s es.Te link beween he minimum coverage provision and he Aordable Care Ac’sinsurance regulaions also ses his law aside rom oher hypoheical laws requir-ing individuals o purchase oher goods or services. Te naional marke or veg-eables will no collapse i Congress does no require people o purchase broccoli,nor will Americans cease o be able o obain auomobiles absen a law requiringhe purchase o cars rom General Moors. Accordingly, a cour decision uphold-ing he Aordable Care Ac would no provide a preceden enabling Congress ocompel all Americans o purchase broccoli or cars, despie he law’s opponens’claims o he conrary.
Congress has broad leeway in how it raises money
Congress also has he auhoriy o “lay and collec axes” under he Consiuion.Tis power o ax also suppors he minimum coverage provision, which works by requiring individuals who do no carry healh insurance o pay slighly moreincome axes. axpayers who reuse insurance mus pay more in axes while hose who do carry insurance are exemp rom his new ax. For his reason, he law isno dieren han dozens o longsanding ax exempions, including he morgageineres ax deducion, which allows people who ake ou home morgages o pay lower axes han people who do no.
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Clearly Constitutional
Ian Millhiser explains how the new health care reform law fits within the powers granted to Congress by the Constitution.
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